The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: May 19, 2022
* * * * * * * * * * * * * * *
KRISTEN COONS, *
* PUBLISHED
*
Petitioner, * No. 20-1067V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Interim Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Reasonable Basis; Good Faith.
*
Respondent. *
*
* * * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Joseph Lewis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
On August 25, 2020, Kristen Coons (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“Vaccine Act,” “the Program,” or “the
Act”), 42 U.S.C. § 300aa-10 et seq. (2012)2 alleging that she developed “a severe neurological
injury” following the administration of a tetanus diphtheria (“Td”) vaccination on June 23, 2019.
Petition at 1, 3 (ECF No. 1).
1
Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it on the United States Court of Federal Claims’ website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will
be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b),
petitioner has 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Decision to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
1
On February 3, 2022, petitioner filed a motion for interim attorneys’ fees and costs.
Petitioner’s Motion for Attorneys’ Fees and Costs (“Pet. Mot.”), filed Feb. 3, 2022 (ECF No.
45). Respondent opposed an interim award of attorneys’ fees and costs based on the contention
that the initial claim lacked a reasonable basis. Respondent’s Response to Pet. Mot. (“Resp.
Response”), filed Feb. 11, 2022 (ECF No. 46).
For the reasons discussed below, the undersigned GRANTS IN PART petitioner’s
motion and awards $50,757.37 in interim attorneys’ fees and costs.
I. BACKGROUND
A. Procedural History
Petitioner filed her petition on August 25, 2020, and filed medical records in August,
September, and October 2020. Petition; Pet. Exhibits (“Exs.”) 1-12. Petitioner filed a Statement
of Completion on January 4, 2021, and on March 17, 2021, the case was assigned to the
undersigned. Statement of Completion, filed Jan. 4, 2021 (ECF No. 12); Notice of Reassignment
dated Mar. 17, 2021 (ECF No. 14).
Respondent filed respondent’s Rule 4(c) Report on May 19, 2021, arguing against
compensation. Resp. Report (“Rept.”), filed May 19, 2021 (ECF No. 19). Petitioner was then
ordered to file an expert report. Order dated May 19, 2021 (ECF No. 20). Petitioner filed an
expert medical report by Dr. David Axelrod on July 9, 2021. Pet. Ex. 13. Dr. Axelrod also
submitted medical literature in support of his opinion. Pet. Exs. 15-41. Petitioner’s second
expert, Dr. Mitchell Miglis, filed a report on August 27, 2021. Pet. Ex. 43. Dr. Miglis also
provided medical literature in support of his opinion. Pet. Exs. 45-51.
Respondent then filed an expert medical report by Dr. Thomas Leist on October 18,
2021. Resp. Ex. A. In addition to his expert report, Dr. Leist also submitted medical literature in
support of his opinion. Resp. Exs. C-G. Petitioner, in response to Dr. Leist’s report, filed
supplemental expert reports by both Dr. Axelrod and Dr. Miglis and additional medical
literature. Pet. Exs. 53-55.
On February 3, 2022, petitioner filed a motion for interim attorney’s fees and costs. Pet.
Mot. Respondent filed a response on February 11, 2022, opposing an interim award of
attorneys’ fees and costs based on a lack of reasonable basis. Resp. Response. Petitioner then
filed a reply to respondent’s response in support of her motion for interim attorneys’ fees and
costs. Pet. Reply in Support of Pet. Mot. (“Pet. Reply”), filed Feb. 16, 2022 (ECF No. 49).
Petitioner also supplemented her motion on February 17, 2022. Petitioner’s Supplement to Mot.
for Interim Attorneys’ Fees and Costs, filed Feb. 17, 2022 (ECF No. 50).
This matter is now ripe for adjudication.
2
B. Abbreviated Summary of Medical Records3
Petitioner was bitten by a dog on June 22, 2019. Pet. Ex. 5 at 2. Following the dog bite,
on June 23, 2019, petitioner sought care from an urgent care clinic which instructed her to report
to the emergency room if her conditioned worsened. Id. at 5. Petitioner’s condition did worsen
later that day, and she went to the emergency room. Pet. Ex. 10 at 165. Petitioner’s test results
indicated an abnormal gram stain lab which was positive for gram positive bacillus, and a high
white blood cell count. Id. at 169-71. At the emergency room, petitioner received a rabies
vaccination, a Td vaccination, and antibiotics on June 23, 2019. Id. at 167-69. Petitioner
received a second dose of the rabies vaccine on June 26, 2019, a third dose on July 1, 2019, and a
fourth dose on July 8, 2019. Pet. Ex. 10 at 68. Prior to this incident, petitioner had been
diagnosed with an anxiety disorder and depression. Id. at 188-89. Petitioner also had a prior
history of alcohol use and vitamin B12 deficiency. Pet. Ex. 5 at 2; Pet. Ex. 10 at 65-66, 315,
420.
On August 9, 2019, petitioner saw Michael Jaorasdr, A.P.R.N., for left leg numbness.
Pet. Ex. 10 at 64. Petitioner indicated that the numbness began around the time of her
emergency room visit. Id. She reported that since she received the injections in her thigh she
has been suffering from “numbness and decreased sensation in her left lower leg.” Id. The
examination was “positive for numbness or shooting pain in [the] hands, arms, legs, or feet,
excessive daytime sleepiness and weakness in [the] arms or legs” as well as “feeling nervous,
anxious, or on edge for the past two weeks.” Id. at 67. Petitioner’s examination was otherwise
normal. Id. at 9-10. Petitioner was assessed as having possible nerve damage associated with
the vaccinations she received in her left thigh, depression, and anxiety. Id.
On August 23, 2019, petitioner saw Dr. Jerry Sobel for her left leg numbness. Pet. Ex. 4
at 8. Petitioner indicated to Dr. Sobel that her numbness began about two days following her
vaccinations in her left thigh. Id. Petitioner also noted that her symptoms had progressively
worsened. Id. On examination, petitioner had reduced sensation in her left leg. Id. Dr. Sobel
concluded that the lack of sensation was associated with either a left L5 radiculopathy or a
peroneal nerve neuropathy. Id. at 9. It was, however, Dr. Sobel’s “medical opinion that [a
peroneal nerve neuropathy] was more likely” because petitioner was a “habitual leg crosser.” Id.
On August 27, 2019, petitioner followed up with Dr. Sobel to review her lab results. Pet.
Ex. 4 at 2. Her lab results indicated a decreased velocity in the left peroneal motor nerve;
however, there was no evidence of electrical instability in any of the examined muscles, and all
other nerves were within normal limits. Id. Dr. Sobel’s notes indicated there was “evidence for
a mild left-sided peroneal nerve neuropathy at or around the fibular head involving motor fibers
to both the [extensor digitorum brevis muscle]and tibialis anterior.” Id. at 3. Dr. Sobel assessed
petitioner with left leg numbness and weakness as well as neuropathy of the left peroneal nerve.
Id. at 6.
3
Although the undersigned has reviewed all of the medical records and other evidence in this
case, for purposes of efficiency, this history is largely taken from respondent’s Rule 4(c) Report.
For a more detailed factual history, see Resp. Rept. at 1-10.
3
On September 3, 2019, petitioner saw Dr. Cory Nelson, an orthopedist, for left knee pain.
Pet. Ex. 6 at 22. Petitioner reported to Dr. Nelson that the numbness in her left leg began two
days after receiving the vaccinations. Id. Dr. Nelson noted the numbness in petitioner’s left leg
and ordered an MRI to rule out potential nerve compression concerns. Id. On September 6,
2019, petitioner saw Dr. Pritish Pawar, a neurologist, for paresthesia. Pet. Ex. 7 at 2. Dr. Pawar
reviewed the previous lab results and assessed the petitioner with left common peroneal
neuropathy at the fibular head and paresthesia. Id. at 3-4. Dr. Pawar also ordered an MRI of
petitioner’s brain, brain stem, and cervical spine. Id. Petitioner did not undergo either of the
MRIs that were ordered. Pet. Ex. 8 at 12.
On September 13, 2019, petitioner met with another neurologist, Dr. David Saperstein,
for the same leg numbness. Pet. Ex. 8 at 12. Dr. Saperstein completed an electromyogram/nerve
conduction study on petitioner which he interpreted as normal and did not indicate a large fiber
neuropathy. Id. Dr. Saperstein noted “[t]his came on surely after tetanus and rabies injections.
Possible that there was some immune response to these.” Id. at 14. Dr. Saperstein ordered a skin
biopsy of the area which revealed an abnormal nerve fiber density at the distal site and a normal
density at the proximal site. Id. at 39. Dr. Saperstein indicated that this was consistent with a
length-dependent neuropathy affecting small nerve fibers. Id. Dr. Saperstein also noted that
petitioner had a vitamin B12 deficiency which could be related to her diffuse abnormality of
vibratory sensations. Id. at 14.
On November 14, 2019, petitioner had a follow up visit with Dr. Saperstein to review lab
results. Pet. Ex. 8 at 16. Dr. Saperstein noted that the lab results were consistent with a
diagnosis of small fiber neuropathy. Id. Dr. Saperstein stated that with the temporal connection
between the vaccinations and illness onset that the leg numbness was “likely the result of an
autoimmune reaction to the vaccination.” Id.
On May 4, 2020, Dr. Saperstein conducted a telehealth visit with petitioner. Pet. Ex. 8 at
29. At that visit, petitioner continued to report neuropathic pain. Id. Dr. Saperstein prescribed a
low dose of gabapentin. Id.
II. PARTIES’ CONTENTIONS
A. Petitioner’s Contentions
Petitioner argues that her complaint was brought in good faith and with a reasonable
basis, pursuant to the statutory requirements for the filing of vaccine-related claims in the
Vaccine Program. Pet. Mot. at 1; see § 15(e)(1). Petitioner maintains that the Td shot she
received on June 23, 2019 caused her to develop a “severe neurological injury,” specifically
small fiber neuropathy. Pet. Mot. at 1; Pet. Reply at 1-5. Petitioner filed two expert reports in
support of her contentions. Pet. Mot. at 2. Petitioner also contends that the medical evidence
and expert reports are sufficient to show that she had a reasonable basis to file her claim. Pet.
Reply at 1. Five hundred and twenty-eight days passed since the filling of the initial petition
until the filing of petitioner’s Motion. Pet. Mot. at 3. In that time, all expenses have been paid
by petitioner’s counsel. Id. at 1, 3. Petitioner additionally argues that both the rates of counsel
and experts are commensurate with their experience and expertise. Id. at 4-6. In petitioner’s
4
reply, she contends that respondent has improperly framed this analysis as an entitlement
decision and not as an issue of reasonable basis. Pet. Reply at 5.
B. Respondent’s Contentions
Respondent maintains that there was never any reasonable basis for the initial petition,
and therefore, attorneys’ fees and costs are inappropriate. Resp. Response at 1. In addition,
respondent argues that “severe neurological injury” is not an accepted diagnosis. Id. at 2.
Respondent also asserts that petitioner failed to undergo requested medical testing which could
have shown other causes of her injury. Id. at 2-3. Respondent contends that the expert reports
filed by petitioner neither indicate a causal association between the Td vaccine and the injury nor
do the reports indicate an appropriate timeframe for the onset of a neurological injury following
vaccination. Id. at 3.
Respondent also points out that respondent’s expert opined against an association
between the Td vaccination and the injury. Resp. Response at 3. In addition, respondent’s
expert holds the opinion that three days is not enough time to have suffered neurological injury
from a vaccine. Id. Respondent’s expert maintains the belief that petitioner’s B12 deficiency,
alcohol use, and potential glucose intolerance are all better explanations for her injury. Id.
Respondent also indicates that petitioner’s supplemental reports do not link the Td
vaccination with small fiber neuropathy. Resp. Response at 3. Furthermore, respondent argues
that the petitioner’s experts failed to explain how three days would be enough time post-
vaccination to develop petitioner’s injury. Id. at 3-4.
Respondent concludes that should the undersigned find in favor of awarding attorneys’
fees and costs, then the Court should exercise its discretion in determining what are reasonable
attorneys’ fees and costs. Resp. Response at 4-5.
III. DISCUSSION
The Vaccine Act mandates that special masters shall award reasonable attorneys’ fees
and cost related to any petition that results in an award of compensation. § 15(e)(1). Even if
compensation is not awarded, the special master may award reasonable fees and costs if, in the
determination of the special master the petition was brought in good faith and with a reasonable
basis. Id. If the special master has not yet made a determination on entitlement, she may still
award reasonable attorneys’ fees and costs on an interim basis. See Avera v. Sec’y of Health &
Hum. Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008); see also Mazmanian v. Sec’y of Health &
Hum. Servs., No. 18-1153V, 2020 WL 618549 (Fed. Cl. Spec. Mstr. Jan. 14, 2020).
“Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Hum. Servs., No.
99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A petitioner acts in
“good faith” if he or she holds an honest belief that a vaccine injury occurred. Turner v. Sec’y of
Health & Hum. Servs., No. 99-544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30,
2007). The standard for finding good faith has been described as “very low,” and findings that a
petition lacked good faith are rare. Heath v. Sec’y of Health & Hum. Servs., No. 08-86V, 2011
WL 4433646, at *2 (Fed. Cl. Spec. Mstr. Aug. 25, 2011).
5
“Reasonable basis,” however, is an objective standard. Unlike the good faith inquiry,
reasonable basis requires more than just petitioner’s belief in her claim. See Turner, 2007 WL
4410030, at *6. Instead, a reasonable basis analysis “may include an examination of a number of
objective factors, such as the factual basis of the claim, the medical and scientific support for the
claim, the novelty of the vaccine, and the novelty of the theory of causation.” Amankwaa v.
Sec’y of Health & Hum. Servs., 138 Fed. Cl. 282, 289 (2018); accord Cottingham ex rel. K.C. v.
Sec’y of Health & Hum. Servs., 971 F.3d 1337 (Fed. Cir. 2020). “More than a mere scintilla but
less than a preponderance of proof could provide sufficient grounds for a special master to find
reasonable basis.” Cottingham, 917 F.3d at 1346.
IV. ANALYSIS
A. Good Faith
In the instant case, the undersigned has no basis to believe, and respondent does not
argue, that petitioner did not bring her claim in good faith.
Therefore, the undersigned finds that the petitioner brought her claim in good faith.
B. Reasonable Basis
In discussing the reasonable basis requirement in Cottingham, the Federal Circuit stressed
the prima facie petition requirements of § 11(c)(1) of the Act. 971 F.3d at 1345-46.
Specifically, the petition must be accompanied by an affidavit and supporting documentation
showing that the vaccinee:
(1) received a vaccine listed on the Vaccine Injury Table;
(2) received the vaccination in the United States, or under certain stated circumstances
outside of the United States;
(3) sustained (or had significantly aggravated) an injury as set forth in the Vaccine Injury
Table (42 C.F.R. § 100.3(e)) or that was caused by the vaccine;
(4) experienced the residual effects of the injury for more than six months, died, or
required an in-patient hospitalization with surgical intervention; and
(5) has not previously collected an award or settlement of a civil action for damages for
the same injury.
Id.
Consistent with the above, petitioner has filed contemporaneous and facially trustworthy
medical records demonstrating: (1) that petitioner received a covered vaccine;4 (2) that the
vaccine was administered in the United States; (3) that petitioner experienced the symptoms
4
The Td vaccine is a covered vaccine pursuant to the Vaccine Act. See § 14(a). However, the
rabies vaccination is not a covered vaccine. The petitioner alleges her neurological injury was
caused by her Td vaccination.
6
petitioner alleges to constitute a vaccine-caused injury, including the development of small fiber
neuropathy; and (4) that these symptoms persisted for at least six months. There has also been
no settlement or other compensation for the alleged injuries. Petition at 1-2, 5-7.
Respondent, however, disagrees that the claim was brought with a reasonable basis.
Resp. Response at 1. Respondent argues that petitioner’s experts failed to explain a causal
theory, a biologically reasonable temporal association, and why the petitioner’s other medical
conditions should not be considered more likely causes of her injury. Id. at 3-4.
Petitioner, however, is correct that this decision on interim attorneys’ fees and costs is
based on whether the claim was brought with a reasonable basis and not the standards described
in Althen v. Secretary of Health & Human Services, 418 F.3d 1274, 1278 (Fed. Cir. 2005). An
examination of the expert reports and medical records indicates that petitioner has a reasonable
basis for her claim. While “serious neurological injury” may not be a diagnosis, small fiber
neuropathy is a diagnosis, and petitioner had a biopsy showing she has this condition.
Petitioner’s initial expert report by Dr. Axelrod argues that molecular mimicry is a likely cause
of petitioner’s injury and cites medical literature backing this claim. Additionally, Dr. Axelrod
discussed the logical sequence of events, including potential other causes and temporal
relationship in both of his reports. Petitioner’s expert, Dr. Miglis, agreed with Dr. Axelrod’s
“report in its entirety.” Dr. Miglis also responded to the respondent’s expert report and
addressed the concerns raised by respondent’s expert.
While the undersigned does not herein analyze whether petitioner’s experts and their
opinions constitute preponderant evidence of causation under the Althen criteria at this stage, the
evidence presented is “more than a mere scintilla.” Cottingham, 971 F.3d at 1346. The
undersigned additionally notes that allegations of vaccinations being causally associated with
small fiber neuropathy have only come before the Court on a few prior occasions, with those
cases being decided both for and against petitioners. See, e.g., Swaiss v. Sec’y of Health &
Hum. Servs., No. 15-286V, 2019 WL 6520791, at *27 (Fed. Cl. Spec. Mstr. Nov. 4, 2019)
(finding Tetanus-diphtheria-acellular-pertussis vaccine could cause Guillain-Barre syndrome
variant small fiber neuropathy via molecular mimicry); Lapierre v. Sec’y of Health & Hum.
Servs., No. 17-227V, 2019 WL 6490730, at *18-20 (Fed. Cl. Spec. Mstr. Oct. 18, 2019) (finding
the medical record unsupportive of small fiber neuropathy due to the lack of a skin biopsy, and
finding the molecular mimicry causation theory unpersuasive).
For these reasons, the undersigned finds that this petition had a reasonable basis when it
was filed and for the time frame for which fees and costs are sought.
V. REASONABLE ATTORNEYS’ FEES AND COSTS
A. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Hum. Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v.
7
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed.
Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours, including those
by paralegals, that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of
Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461
U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a
number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522.
Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised
by respondent and without providing petitioner notice and opportunity to respond. See Sabella v.
Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engaged
in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v.
Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011).
1. Hourly Rates
Here, petitioner requests the following hourly rates for the attorneys and paralegals from
her firm who worked on this matter:
Andrew D. Downing – Attorney
2020-2021: $385.00
2022: $415.00
Courtney Van Cott – Attorney
2020-2021: $275.00
2022: $325.00
Robert W. Cain & Danielle P. Avery – Paralegals
2020-2022: $135.00
The undersigned finds that the requested rates are reasonable. Moreover, the rates are in
accordance with what Mr. Downing and Ms. Van Cott have previously been awarded for their
Vaccine Program work. See, e.g., Hoover ex rel. L.H. v. Sec’y of Health & Hum. Servs., No.
20-1394V, 2021 WL 5575768, at *8-9 (Fed. Cl. Spec. Mstr. Nov. 1, 2021); Tucker v. Sec’y of
Health & Hum. Servs., No. 19-13V, 2020 WL 6777559, at *2 (Fed. Cl. Spec. Mstr. Oct. 30,
2020); Olschansky v. Sec’y of Health & Hum. Servs., No. 17-1096V, 2020 WL 1027681, at *2
(Fed. Cl. Spec. Mstr. Feb. 21, 2020). Additionally, the requested rates are below the range of
acceptable rates per the Office of Special Masters attorney’s fee schedule for 2022.5 The
undersigned will therefore award the rates requested.
5
The 2022 Office of Special Masters Attorney’s Forum Hourly Rate Fee Schedule can be found
at http://www.uscfc.uscourts.gov/sites/default/files/Attorneys%27-Forum-Rate-Fee-Schedule-
8
Mr. Downing also requested an hourly rate of $135.00 per hour for work done by
paralegals from 2020 to 2022. These rates are consistent with such work previously awarded in
the Program. See Hoover, 2021 WL 5575768, at *9. Therefore, the undersigned will award the
rates requested.
2. Reduction of Billable Hours
In reducing an award of fees, the goal is to achieve rough justice, and therefore a special
master may take into account their overall sense of a case and may use estimates when reducing
an award. See Florence v. Sec’y of Health & Hum. Servs., No. 15-255V, 2016 WL 6459592, at
*5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011)). It is well
established that an application for fees and costs must sufficiently detail and explain the time
billed so that a special master may determine, from the application and the case file, whether the
amount requested is reasonable. Bell v. Sec’y of Health & Hum. Servs., 18 Cl. Ct. 751, 760
(1989). Petitioner bears the burden of documenting the fees and costs claimed.
Upon review of the submitted billing records, the undersigned finds the majority of the
time billed to be reasonable. The timesheet entries are sufficiently detailed for an assessment to
be made of the entries’ reasonableness. A small reduction, however, is necessary due to
excessive paralegal time billed. Paralegals billed time on administrative tasks (e.g., filing
documents). Paralegal time was also excessive for review of filings (e.g., 0.1 hours to receive
and review status reports and scheduling orders). These issues have previously been raised with
the Van Cott & Talamante firm. See Hoover, 2021 WL 5575768, at *9; Sheridan v. Sec’y of
Health & Hum. Servs., No. 17-669V, 2019 WL 948371, at *2-3 (Fed. Cl. Spec. Mstr. Jan. 31,
2019); Moran v. Sec’y of Health & Hum. Servs., No. 16-538V, 2019 WL 1556701, at *4 (Fed.
Cl. Spec. Mstr. Jan. 23, 2019). Therefore, a reasonable reduction of $500.00 is being made for
excessive billing for paralegal time.
B. Reasonable Costs
1. Expert Fees
Petitioner requests $16,050.00 in expert fees. Pet. Mot., Ex. A at 22-24, 36, 38-40.
These fees are divided between petitioner’s two experts: Dr. David Axelrod and Dr. Mitchell
Miglis. Dr. Axelrod charged a total of $9,300.00 for working a total of 23.25 hours at a rate of
$400.00 an hour. Dr. Miglis charged a total of $6,750.00 for working 13 hours at a rate of
$500.00 an hour. However, the second invoice from Dr. Miglis lists a final expense of $3,500.00
instead of $3,250.00 for 6.5 hours at $500 an hour. Pet. Mot., Ex. A at 40. Therefore, $250.00
will be reduced from the reasonable costs.6
2022-%28Final%29.pdf
6
If petitioner believes this was a clerical error, the issue may be resolved when a final
application on attorneys’ fees and costs is made.
9
Although an hourly rate of $500.00 is considered high in the Vaccine Program, the
undersigned will allow that rate in this case based on the qualifications of Dr. Miglis. The
undersigned notes that other special masters have determined this rate appropriate for other well
qualified experts. See, e.g., Jaafar v. Sec’y of Health & Hum. Servs., No. 15-267V, 2019 WL
2265329, at *3-4 (Fed. Cl. Spec. Mstr. Apr. 26, 2019); Simon v. Sec’y of Health & Hum. Servs.,
No. 05-941V, 2008 WL 623833, at *8-9 (Fed. Cl. Spec. Mstr. Feb. 21, 2008).
Dr. Axelrod has filed numerous reports with this Court and his $400.00 an hour rate has
been approved on many occasions. See, e.g., Druery v. Sec’y of Health & Hum. Servs., No. 17-
1213V, 2020 WL 5743105, at *5 (Fed. Cl. Spec. Mstr. Aug. 17, 2020); Leandro v. Sec’y of
Health & Hum. Servs., No. 18-1097V, 2020 WL 3046114, at *2 (Fed. Cl. Spec. Mstr. May 11,
2020); Domke v. Sec’y of Health & Hum. Servs., No. 16-307V, 2018 WL 1835330, at *8 (Fed.
Cl. Spec. Mstr. Mar. 12, 2018). Therefore, the undersigned finds his rate reasonable and will
award his fees in full.
2. Miscellaneous Costs
Petitioner also requests $989.87 for miscellaneous costs, including the filing fee, medical
records, and postage charges. Pet. Mot., Ex. A at 22-24, 26-35, 37. Petitioner has provided
adequate documentation supporting these costs and the undersigned will award them in full.
VI. CONCLUSION
Based on all of the above, the undersigned finds that it is reasonable to compensate
petitioner and her counsel as follows:
Requested Attorneys’ Fees: $ 34,467.50
Reduction of Attorneys’ Fees: - ($ 500.00)
Awarded Attorneys’ Fees: $ 33,967.50
Requested Attorneys’ Costs: $ 17,039.87
Reduction of Attorneys’ Costs: - ($ 250.00)
Awarded Attorneys’ Costs: $ 16,789.87
Total Attorneys’ Fees and Costs: $ 50,757.37
Accordingly, the undersigned awards:
A lump sum in the amount of $50,757.37, representing reimbursement for
reasonable interim attorneys’ fees and costs, in the form of a check payable jointly
to petitioner and petitioner’s counsel of record, Mr. Andrew Downing.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this Decision.7
7
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
10
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master
11